The Obama Administration, Fundamental Institutional Change, and the Constitutional Lawmaking System

Rappaport, Michael B., Constitutional Commentary

As a fusionist, (1) or moderate libertarian with conservative influences, I was alarmed by the election of Barack Obama and a largely Democratic Congress. Based on Obama's campaigning and his voting record, I believed that he was likely to strongly favor a variety of programs that would significantly increase the size of government. Combined with a Congress that had large Democratic majorities in both houses, the stage seemed set for a large expansion of government.

Increasing the risk of government growth was the financial crisis that preceded the election. The financial sector's significant problems led many people to anticipate a severe economic downturn, perhaps one approaching that of the Great Depression. With an emergency of that kind, people often look to the government to do something to address the problem. Thus, President Obama and the Congressional Democrats seemed to have both the power and opportunity to significantly grow the government. Moreover, the Administration appeared to recognize this too, as suggested by Chief of Staff Rahm Emmanuel's infamous statement that "[y]ou never want a serious crisis to go to waste." (2)

The possibility of another New Deal is a scary thought to someone with small government views. Yet, this was certainly not the only possible result. The last time there was a Democratic President, with large Democratic congressional majorities, who sought to restructure health care, the result was not larger, but smaller government. The two years when President Clinton and the Congressional Democrats governed led to a rejection of health care restructuring and a Republican takeover of Congress. Thus, one possibility is that the Obama presidency might lead the country to reject big government ideas and to replace them with the smaller government notions. I have called this "the Carter/Clinton scenario"--a reference to the last two times that Democrats controlled all three lawmaking branches, which led to the smaller government victories of Ronald Reagan and Newt Gingrich. (3)

Reflections on these different possible results--of a Second New Deal, of the Carter/Clinton scenario, and of something in between--naturally leads one to ponder the forces in the political system that determine whether one party rule leads to fundamental institutional change, like the New Deal, or to a rejection by the voters. It also leads one to ponder the normative question of whether, and how much, a constitutional system should place limits on a majority's ability to enact fundamental change.

In this short essay, I explore fundamental institutional change and argue that a desirable constitution should constrain such change. I argue that many of the reasons that justify strict limitations on the passage of constitutional amendments also justify constraints on fundamental institutional change. I then show that the modern American constitutional system does place significant limits on basic institutional change. Far from allowing a single election in which a short term majority can secure power to enact enormous change, it employs several limitations on radical change, including the American tri-cameral lawmaking system and the institution of midterm elections. I then examine three historical periods, that of the New Deal, the Great Society, and the early Clinton Administration, to support my analysis. I conclude by applying the analysis to the Obama Administration and suggesting that if it does enact fundamental institutional change, it will do so only by surmounting the not insubstantial checks that the American constitutional system places on such change. Finally, I should note that this essay was completed, except for minor style edits, at the end of October, 2009, when it was not clear whether, and if so, in what form, the Democrat's health care restructuring would pass. I have not changed the essay to reflect subsequent developments.

I. THE TWO SENSES OF CONSTITUTIONAL CHANGE

In examining the ability of a majority to effect fundamental change, it is useful to distinguish two different senses of the constitution of a country and two corresponding senses of constitutional change. …

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